August 30, 2013

2 v. 3 v. The Liberal Arts

Thomas Powell once famously said, “If you think that you can
think about a thing, inextricably attached to something else, without thinking
of the thing it is attached to, then you have a legal mind.” This well-known quotation has been running
through my mind recently as I have been observing the (recurring) debate about
how long law school should be in the United States. In particular, I have been thinking about it as
a result of a gut feeling that the ‘2 v. 3’ debate is largely occurring within
a vacuum, with not enough attention being paid to the current (beleaguered)
state of the United States’ higher education system as a whole. So, casting aside my legal mind (at least for
the moment), I want to raise a few questions, over the course of a few posts,
about the larger system we have constructed are dismantling; this
‘larger system’ serves as a feeder system for law schools (in their present incarnation)
and, as a result, seems to be something inextricably attached to debates
concerning them.

I have lived in a number of different countries and have
participated in a number of different ways of ‘doing legal education.’ I say this only to emphasize that I am not
particularly invested in the outcome of the ‘2 v. 3’ debate. In other words, I do not think there is a
right answer to it, but I am also skeptical that it is the right question in
the first place. This is to say that I
believe there are some questions about legal education—and higher education in
the United States more generally—that are rarely being asked and should be.

I’d like to begin with a sort of ‘big picture’ problem with
undergraduate education in the United States —as I see it and as I have
experienced it; the United States is, however, a huge country with much
variation—and then think about how that undergraduate problem poses important
dilemmas for law schools who then have to ‘deal’ with what contemporary
undergraduate education gives them. This
‘big picture’ problem concerns many, many law students’ lack of exposure to
political theory, history, sociology, and other disciplines which help make up
what we call the ‘liberal arts.’ Rather,
what I often see are incoming law students who—to no fault of their own—have
majored in fields like marketing, finance, and accounting, or even physical
therapy.

While there is a great diversity in business fields
education in the United States—and much to be learned from them—my worry here
is that law schools are taking in students whose only serious educational
enterprise previously was another ‘professional’ program; in other words, that
we are enabling students to enter one professional school after only having
attended another (undergraduate) professional school. I call this a ‘problem’ for a number of
reasons, some of which I will develop further in future posts, but for now I’d like
to mention how difficult this kind of undergraduate education makes it to get
law students (incoming and otherwise) to understand why there are legal
disputes in the first place. Put succinctly, I commonly get responses in
class and on exams (and in papers) that suggest an underlying befuddlement at
why everyone in a given dispute can’t just apply ‘the rule.’

I’ll end here, for now, but I think such an instinct belies
an inattention—encouraged in our increasingly market-oriented undergraduate
education—to questions of power, resistance, diversity, and, more generally,
why it has been so hard for human beings to ever ‘just get along.’ In other words, an inattention to some of the
fundamental questions animating a liberal arts education.

I hope everyone has a good Labor Day weekend and I look
forward to the discussion.

Comments

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I think that doesn't begin to get at the scale of the problem. Students who come out of a liberal arts education also pose challenges. Consider the arc over the last 25 years or so of what has come to be considered the educational mission of law schools. When I started teaching, in the 1980s, our job was teaching law and legal writing, an enterprise that was understood merely to build on the solid education and writing skills of incoming students. By the 1990s, students were showing up who couldn't write. Now our job wasn't simply to teach legal writing, but to teach writing itself, leading to a rapid expansion in the size, intensity, and importance of legal writing programs. More recently, students began to arrive who don't really have what 25 years ago we would have called an education, regardless of what programs they went through as undergraduates. Now we have to teach them tons of things we used to take for granted, and then try to impart a sound legal education on top of that. Most recently, students are coming in without any experience or conception of the world of work, so we have to teach them manners and social skills, on top of everything else. The idea of a two-year legal program made some sense in 1985. Not now, unless we are willing to pass students through more or less the way we've received them -- which seems to be the basic mission of the other institutions in the educational chain.

There are plenty of law firms and clients out there who wish more law students had majored in accounting or finance. Do you really think law students would better "understand why there are legal disputes in the first place" if they had history degrees rather than accounting or engineering degrees?

Anonprof: I am sympathetic to much of what you describe and I'll delve a bit more into some of your concerns in future posts.

Paul: I think 18-year-olds make decisions about undergraduate degrees with much-less-than-perfect information, and also with much parental pressure about 'being practical.' So I'm not willing to fault them on their choices in this respect. Given that position, I also think we need to make law school available and viable for people who wish to change careers and goals later in life and so, yes, maybe we need something like the med school entrance requirements model - entrance requirements which anyone (with means) can theoretically take whether in undergraduate or post-undergraduate.

Doug: I have no doubt that that is the case, and law schools should offer such courses or allow students to cross-register in other schools to take them. I feel the same way about language courses. But yes, I still do believe that history (along with other liberal disciplines) give students crucial perspectives on our legal system that an accounting course (of study) probably does not—I am willing to be convinced otherwise—and I'll talk more about this in future posts.

When you are taking on a lot of debt to get what once was a cheap education, it doesn't make sense to major in the liberal arts. It may make sense if you attend Harvard undergrad, where Goldman Sachs will come hire you even if you are a humanities or social science major. But not at almost any other university in the country.

The average bar candidate does not need to know much more than the average college student about "political theory, history, sociology, and other disciplines." They don't need to learn these things in a snazzy new building. What they need is to be charged a lot less than $37,000 per year (which adds up to about $140,000 total without factoring in COL) so when they take that $50,000 job doing family law, or $40,000 job at the PDs office, they can still have a middle class life.

So a student who pays $140,000 to SLU to major in liberal arts and who is one of the 42% who doesn't get a lawyer job is SOL. She's like most other students. But someone with a finance, or accounting degree may have other options to fall back on. Even someone with a physical therapy background might be extremely valuable to medical malpractice or personal injury firms. And a marketing degree holder could be better able to start her own firm.

So maybe the question is: why aren't law schools seeking more diversity in the UG majors of their applicants?

BoredJD, thanks for your comments. As I indicated in my post, however, I'm not in any way pre-committed to a particular form of legal education. Many of your concerns about costs, in fact, could be at least partially addressed by making law an undergraduate degree—as it is in many nations. But I'd still have my concerns about what kind of lawyers are being produced in such a system, and whether they have the skills, knowledge base, and ethical capacity that I would hope we would want in a lawyer. Furthermore, we can address your concerns about costs by handing law degrees away for free, but I assume even you would not want to see that kind of 'system' and that you too (at the end of the day) have concerns about what substance we fill however many years—at whatever cost—in whatever system we will have.

Jeff- I'm curious to know what kind of lawyers you think are being produced by American law schools under the current system. I'm also curious to know if you think the content of law school is responsible for producing these lawyers, how much they are responsible, and if you know of any studies or data showing that.

My suspicion is that a lot of the "skills, knowledge base, and ethical capacity" that novice lawyers have is formed well before the student gets to law school. There is not much law school can do to improve on it. Currently, a lot of above average applicants are choosing not to apply, and schools are taking anyone who shows up at their door who can sign a student loan application. Naturally, some of these students are not quite up to snuff.

So we should try and reduce law schools and tuition so we can produce the kind of lawyers you are looking for. If we give 5,000 free law licenses away to the top applicants in the country, we might produce better and more-well rounded lawyers than the average person who spends three years at certain high-cost, un-selective law schools that try to mimic the traditional model.

A deep sense of the law does require a deep sense of why people disagree, how they disagree, etc.

But few of today’s liberal arts degrees provide that sense. Most of them, and especially in the majors you listed (eg, sociology), immerse the students in the thin version of politics that is today’s academic fashion. They are sterile degrees that students are wise to avoid -- which, thankfully, they’ve been avoiding in increasing numbers.

Yet, as noted above, if the students will represent organizational clients, they can gain that sense if they study economics, finance, and accounting in college. Those majors will also equip them for practicing law in the fields of tax, divorce law, trusts and estates, and, of course, the enormous field of business transactional law.

Studying science hones rigor. Studying engineering teaches rigor and orients the students to solving real problems in practical ways. Any STEM degree will help prepare students for being a lawyer in the modern regulatory state.

BoredJD: Let me defer a full answer to your initial set of questions until my next post, but one of my major worries is deficient writing skills, which I think is the result of pedagogical deficiencies in undergraduate (and pre-undergraduate) education, and which law school doesn't do enough to surmount. Writing is a tough beast to teach though, but let me hypothesize a few things about it in my next post. Thanks for your questions.

anon-abc: You make some excellent points. I'll try to respond in my next post.

Tough beast is an understatement. If students didn't learn to write a sentence in primary school, a paragraph in middle school, an essay in high school, a paper in college, no legal writing professor can remedy that deficiency in a semester or two. Having taught writing, I see how few students learned to write in college.

I suppose that some people in my law school had undergrad majors in fields like marketing, business, and nutrition but that does not feel like all or even most of us.

Most of the people I went to law school came from the field of student I generally think of as being smart but "somewhat impractical". We were liberal arts students. We did attend schools like Ponoma, Williams, Swarthmore, Amherst, etc. We did study subjects like history, literature, music, etc. I was a former artist, another classmate was a former dancer, some people had other advanced degrees like myself in the arts and humanities or sciences.

But this did not help us get other jobs. I spent most of my 20s going from project job to project job without building a career and trying to launch an artistic career. My attempts at getting a normal office job always fell flat on their face.

My theory is that US law school has always been largely filled with the "smart but somewhat impractical student" who saw that teaching/academics was not for them but could not get a foothold in business and other fields. In better economic times, there were enough law or somewhat law-related jobs for these students. Now there are not and the smart but somewhat impractical student will be the one who does more struggling in the new economy. Previously these students also found careers in publishing, the arts, or being the critic at a local newspaper (when there were local newspapers that paid), etc.

You really don't articulate a single piece of evidence or even common sense logical to justify this claim. "his ‘big picture’ problem concerns many, many law students’ lack of exposure to political theory, history, sociology, and other disciplines which help make up what we call the ‘liberal arts.’" Social science people really think they know something. Your field is just regressions without clean measurement.

The criticism of the law students is that they have liberal arts degrees. If they actually had accounting degrees, unemployment rates would not be so high. Given bimodal salary distribution in law school, anyone who does not a big firm job should & would consider an entry level accounting job a big 4 accounting firm. They can't because they have history degrees or other degrees that offer no marketable skills. These people are not better writers.

It's also just silly. Taking some random survey course on politics in China or literature in Medieval France is not useful. Being able to intelligently say how much the value of Nokia is after the pieces that Micosoft recently purchased, or at least being more familiar with the vocabulary surrounding how that valuation questions would be answered is way more helpful to any clients that can actually pay enough to cover the cost of law school+undergraduate. No one is paying anyone 6.8% of 300K to find iambic pentameter.

I went to SCU for undergrad, UCLA Law. SCU is less prestigious that UCLA, but it would be easier to get a job as an accounting major than a UCLA grad who could not get a job at OCI (or a clerkship).